2018 US Code
Title 33 - Navigation and Navigable Waters
Chapter 36 - Water Resources Development
Sec. 2201 - "Secretary" defined

For purposes of this Act, the term "Secretary" means the Secretary of the Army.

(Pub. L. 99–662, §2, Nov. 17, 1986, 100 Stat. 4082.)

This Act, referred to in text, is Pub. L. 99–662, Nov. 17, 1986, 100 Stat. 4082, as amended, known as the Water Resources Development Act of 1986. For complete classification of this Act to the Code, see Short Title note set out below and Tables.

Pub. L. 115–270, §1(a), Oct. 23, 2018, 132 Stat. 3765, provided that: "This Act [see Tables for classification] may be cited as 'America's Water Infrastructure Act of 2018'."

Pub. L. 115–270, title I, §101, Oct. 23, 2018, 132 Stat. 3768, provided that: "This title [see Tables for classification] may be cited as the 'Water Resources Development Act of 2018'."

Pub. L. 114–322, §1(a), Dec. 16, 2016, 130 Stat. 1628, provided that: "This Act [see Tables for classification] may be cited as the 'Water Infrastructure Improvements for the Nation Act' or the 'WIIN Act'."

Pub. L. 114–322, title I, §1001, Dec. 16, 2016, 130 Stat. 1632, provided that: "This title [see Tables for classification] may be cited as the 'Water Resources Development Act of 2016'."

Pub. L. 113–121, §1(a), June 10, 2014, 128 Stat. 1193, provided that: "This Act [see Tables for classification] may be cited as the 'Water Resources Reform and Development Act of 2014'."

Pub. L. 110–114, §1(a), Nov. 8, 2007, 121 Stat. 1041, provided that: "This Act [see Tables for classification] may be cited as the 'Water Resources Development Act of 2007'."

Pub. L. 106–541, §1(a), Dec. 11, 2000, 114 Stat. 2572, provided that: "This Act [see Tables for classification] may be cited as the 'Water Resources Development Act of 2000'."

Pub. L. 106–53, §1(a), Aug. 17, 1999, 113 Stat. 269, provided that: "This Act [see Tables for classification] may be cited as the 'Water Resources Development Act of 1999'."

Pub. L. 104–303, §1(a), Oct. 12, 1996, 110 Stat. 3658, provided that: "This Act [see Tables for classification] may be cited as the 'Water Resources Development Act of 1996'."

Pub. L. 102–580, §1(a), Oct. 31, 1992, 106 Stat. 4797, provided that: "This Act [enacting sections 59gg, 426i–1, 569d to 569f, 653, 1271, 2268, and 2325 to 2329 of this title, amending sections 426j, 467f, 467j to 467l, 562, 652, 1342, 1412, 1413, 1414, 1415, 1416, 1420, 1421, 2211, 2213, 2283, and 2309a of this title, section 3036 of Title 10, Armed Forces, sections 460tt, 4702, and 4711 of Title 16, Conservation, and section 1962d–16 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under this section and sections 541, 1271, 2211, 2239, 2267, and 2281 of this title, section 9505 of Title 26, Internal Revenue Code, and sections 390h–4 and 390h–5 of Title 43, Public Lands] may be cited as the 'Water Resources Development Act of 1992'."

Pub. L. 101–640, §1(a), Nov. 28, 1990, 104 Stat. 4604, provided that: "This Act [enacting sections 59bb and 2316 to 2324 of this title, amending sections 579a, 652, 701n, 709a, 2213, 2215, 2232, 2238, 2281, 2309a, and 2314a of this title, section 460tt of Title 16, Conservation, and section 1962d–16 of Title 42, The Public Health and Welfare, repealing sections 579 and 2239 of this title, enacting provisions set out as notes under this section, sections 426e, 1252, 1268, 2213, 2232, 2239, 2313, and 2317 of this title, and section 1405c of Title 48, Territories and Insular Possessions, and amending provisions set out as notes under sections 2294 and 2314 of this title and section 460d of Title 16] may be cited as the 'Water Resources Development Act of 1990'."

Pub. L. 100–676, §1(a), Nov. 17, 1988, 102 Stat. 4012, provided that: "This Act [enacting sections 59j–1, 59y, 59z, and 2312 to 2315 of this title, amending sections 426j, 701b–12, 1293a, 2211, 2239, 2280, and 2291 of this title and section 1962d–5a of Title 42, The Public Health and Welfare, enacting provisions set out as notes under this section, sections 579a, 988, 2211, 2294, 2300, and 2314 of this title, and section 1962d–5g of Title 42, and amending provisions set out as a note under section 2294 of this title] may be cited as the 'Water Resources Development Act of 1988'."

Pub. L. 99–662, §1(a), Nov. 17, 1986, 100 Stat. 4082, provided that: "This Act [enacting this chapter and sections 59n–1, 59v, 59w, 403b, 426n, 426o, 467f to 467n, 555a, 579a, 652, 701b–12, 709b, 988a, and 1414a of this title, sections 460tt of Title 16, Conservation, sections 4461, 4462, 9505, and 9506 of Title 26, Internal Revenue Code, section 483d of former Title 40, Public Buildings, Property, and Works, and sections 1962d–11b and 1962d–20 of Title 42, The Public Health and Welfare, amending sections 409, 414, 415, 426g, 426i, 426j, 426m, 467, 467b, 555, 557, 603a, 610, 701a–1, 701g, 701n, 701r, 701s, 984, and 1804 of this title, section 3036 of Title 10, Armed Forces, sections 460ee and 1002 of Title 16, section 4042 of Title 26, sections 1962d–5a, 1962d–5b, 1962d–5d, 1962d–5f, and 1962d–16 of Title 42, sections 390 and 390b of Title 43, Public Lands, and section 1121–1 of Title 46, Appendix, Shipping, repealing sections 1801 and 1802 of this title, enacting provisions set out as notes under this section, sections 426, 426g, 467, 661, 984, 988, 1414a, and 2294 of this title, sections 460d and 1004 of Title 16, sections 1, 4042, 4461, 9505, and 9506 of Title 26, sections 1962d–5b, 1962d–20, and 10301 of Title 42, and section 390b of Title 43, and amending provisions set out as a note under section 1962b–3 of Title 42] may be cited as the 'Water Resources Development Act of 1986'."

Pub. L. 99–662, title II, §215, Nov. 17, 1986, 100 Stat. 4109, provided that: "This title [enacting subchapter II of this chapter] may be cited as the 'Harbor Development and Navigation Improvement Act of 1986'."

Pub. L. 113–121, title I, §1042, June 10, 2014, 128 Stat. 1243, provided that:

"(a) In General.—Subject to the availability of appropriations, the Secretary [of the Army] shall complete and submit to Congress by the applicable date required the reports that address public safety and enhanced local participation in project delivery described in subsection (b).

"(b) Reports.—The reports referred to in subsection (a) are the reports required under—

"(c) Failure To Provide a Completed Report.—

"(d) Limitations.—

"(e) No Fault of the Secretary.—Amounts shall not be reprogrammed under subsection (c) if the Secretary certifies in a letter to the applicable committees of Congress that—

"(f) Limitation.—The Secretary shall not reprogram funds to the General Expenses account of the civil works program of the Corps of Engineers for the loss of the funds."

Pub. L. 113–121, title I, §1043, June 10, 2014, 128 Stat. 1244, as amended by Pub. L. 115–270, title I, §1137, Oct. 23, 2018, 132 Stat. 3783, provided that:

"(a) Non-Federal Implementation of Feasibility Studies.—

     "(I) non-Federal funds were used to carry out the activities that would have been the responsibility of the Secretary;

     "(II) the Secretary determines that the feasibility study complies with all applicable Federal laws and regulations; and

     "(III) the project is authorized by any provision of Federal law enacted after the date on which an agreement is entered into under subparagraph (A).

     "(I) if applicable, the balance of any unobligated amounts appropriated for the study, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and

     "(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of the feasibility study.

     "(I) has the necessary qualifications to administer those funds; and

     "(II) will comply with all applicable Federal laws (including regulations) relating to the use of those funds.

"(b) Non-Federal Project Implementation Pilot Program.—

     "(I) not more than 12 projects that have been authorized for construction prior to the date of enactment of this Act and that—

     "(II) not more than 3 projects that have been authorized for construction prior to the date of enactment of this Act and that have not received Federal funds in the period beginning on the date on which the project was authorized and ending on the date of enactment of this Act; and

     "(III) not more than 5 projects that have been authorized for construction, but did not receive the authorization prior to the date of enactment of this Act;

     "(I) if applicable, the balance of the unobligated amounts appropriated for the project, except that the Secretary shall retain sufficient amounts for the Corps of Engineers to carry out any responsibilities of the Corps of Engineers relating to the project and pilot program; and

     "(II) additional amounts, as determined by the Secretary, from amounts made available under paragraph (8), except that the total amount transferred to the non-Federal interest shall not exceed the updated estimate of the Federal share of the cost of construction, including any required design; and

Pub. L. 113–121, title V, §5014, June 10, 2014, 128 Stat. 1329, provided that:

"(a) In General.—The Secretary [of the Army] shall establish a pilot program to evaluate the cost effectiveness and project delivery efficiency of allowing non-Federal pilot applicants to carry out authorized water resources development projects for coastal harbor improvement, channel improvement, inland navigation, flood damage reduction, aquatic ecosystem restoration, and hurricane and storm damage reduction.

"(b) Purposes.—The purposes of the pilot program established under subsection (a) are—

"(c) Subsequent Appropriations.—Any activity undertaken under this section is authorized only to the extent specifically provided for in subsequent appropriations Acts.

"(d) Administration.—In carrying out the pilot program established under subsection (a), the Secretary shall—

"(e) Selection Criteria.—In identifying projects under subsection (d)(1), the Secretary shall consider the extent to which the project—

"(f) Detailed Project Schedule.—Not later than 180 days after entering into a project partnership agreement under subsection (d)(4), a non-Federal pilot applicant, to the maximum extent practicable, shall submit to the Secretary a detailed project schedule for the relevant project, based on estimated funding levels, that specifies deadlines for each milestone with respect to the project.

"(g) Payment.—Payment to the non-Federal pilot applicant for work completed pursuant to a project partnership agreement under subsection (d)(4) may be made from—

"(h) Technical Assistance.—At the request of a non-Federal pilot applicant participating in the pilot program established under subsection (a), the Secretary may provide to the non-Federal pilot applicant, if the non-Federal pilot applicant contracts with and compensates the Secretary, technical assistance with respect to—

"(i) Identification of Impediments.—

"(j) Public Benefit Studies.—

"(k) Non-Federal Funding.—The non-Federal pilot applicant may finance the non-Federal share of a project carried out under the pilot program established under subsection (a).

"(l) Applicability of Federal Law.—Any provision of Federal law that would apply to the Secretary if the Secretary were carrying out a project shall apply to a non-Federal pilot applicant carrying out a project under this section.

"(m) Cost Share.—Nothing in this section affects a cost-sharing requirement under Federal law that is applicable to a project carried out under the pilot program established under subsection (a).

"(n) Report.—Not later than 3 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report describing the results of the pilot program established under subsection (a), including any recommendations of the Secretary concerning whether the program or any component of the program should be implemented on a national basis.

"(o) Non-Federal Pilot Applicant Defined.—In this section, the term 'non-Federal pilot applicant' means—

Pub. L. 106–541, title II, §214, Dec. 11, 2000, 114 Stat. 2594, as amended by Pub. L. 108–137, title I, §114, Dec. 1, 2003, 117 Stat. 1836; Pub. L. 109–99, §1, Nov. 11, 2005, 119 Stat. 2169; Pub. L. 109–209, §1, Mar. 24, 2006, 120 Stat. 318; Pub. L. 109–434, §1, Dec. 20, 2006, 120 Stat. 3197; Pub. L. 110–114, title II, §2002, Nov. 8, 2007, 121 Stat. 1067; Pub. L. 111–120, §1, Dec. 22, 2009, 123 Stat. 3478; Pub. L. 111–315, §1, Dec. 18, 2010, 124 Stat. 3450; Pub. L. 113–121, title I, §1006, June 10, 2014, 128 Stat. 1212, which related to funding to process permits and was formerly set out as a note under this section, was transferred to section 2352 of this title.

Pub. L. 106–541, title II, §223, Dec. 11, 2000, 114 Stat. 2597, provided that:

"(a) In General.—The Secretary shall conduct a monitoring program of the economic and environmental results of up to 5 eligible projects selected by the Secretary.

"(b) Duration.—The monitoring of a project selected by the Secretary under this section shall be for a period of not less than 12 years beginning on the date of its selection.

"(c) Reports.—The Secretary shall transmit to Congress every 3 years a report on the performance of each project selected under this section.

"(d) Eligible Project Defined.—In this section, the term 'eligible project' means a water resources project, or separable element thereof—

"(e) Costs.—The cost of conducting monitoring under this section shall be a Federal expense."

Pub. L. 106–53, title V, §511, Aug. 17, 1999, 113 Stat. 341, provided that:

"(a) In General.—In evaluating potential improvements for water control management activities and consolidation of water control management centers, the Secretary may consider a regionalized water control management plan but may not implement such a plan until the date on which a report is submitted under subsection (b).

"(b) Report.—Not later than 180 days after the date of enactment of this Act [Aug. 17, 1999], the Secretary shall submit to the Committee on Transportation and Infrastructure and the Committee on Appropriations of the House of Representatives and the Committee on Environment and Public Works and the Committee on Appropriations of the Senate a report containing—

Pub. L. 106–53, title II, §222, Aug. 17, 1999, 113 Stat. 295, provided that:

"(a) In General.—It is the sense of Congress that, to the extent practicable, all equipment and products purchased with funds made available under this Act [see Tables for classification] should be American made.

"(b) Notice to Recipients of Assistance.—In providing financial assistance under this Act, the Secretary, to the greatest extent practicable, shall provide to each recipient of the assistance a notice describing the statement made in subsection (a)."

Pub. L. 104–303, title II, §235, Oct. 12, 1996, 110 Stat. 3704, provided that:

"(a) Purchase of American-Made Equipment and Products.—It is the sense of Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this Act [see Tables for classification] should be American-made.

"(b) Notice to Recipients of Assistance.—In providing financial assistance under this Act, the Secretary, to the greatest extent practicable, shall provide to each recipient of the assistance a notice describing the statement made in subsection (a)."

Pub. L. 99–662, title IX, §948, Nov. 17, 1986, 100 Stat. 4201, provided that: "Any spending authority under this Act [see Short Title note above] shall be effective only to such extent and in such amounts as are provided in appropriation Acts. For purposes of this Act, the term 'spending authority' has the meaning provided in section 401(c)(2) of the Congressional Budget Act of 1974 [2 U.S.C. 651(c)(2)], except that such term does not include spending authority for which an exception is made under section 401(d) of such Act."

Pub. L. 115–270, title I, §102, Oct. 23, 2018, 132 Stat. 3768, provided that: "In this title [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 114–322, title I, §1002, Dec. 16, 2016, 130 Stat. 1632, provided that: "In this title [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 113–121, §2, June 10, 2014, 128 Stat. 1195, provided that: "In this Act [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 110–114, §2, Nov. 8, 2007, 121 Stat. 1049, provided that: "In this Act [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 106–541, §2, Dec. 11, 2000, 114 Stat. 2575, provided that: "In this Act [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 106–53, §2, Aug. 17, 1999, 113 Stat. 273, provided that: "In this Act [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 104–303, §2, Oct. 12, 1996, 110 Stat. 3662, provided that: "In this Act [see Tables for classification], the term 'Secretary' means the Secretary of the Army."

Pub. L. 102–580, §3, Oct. 31, 1992, 106 Stat. 4801, provided that: "For purposes of this Act [see Short Title of 1992 Amendment note above], the term 'Secretary' means the Secretary of the Army."

Pub. L. 101–640, §2, Nov. 28, 1990, 104 Stat. 4605, provided that: "For purposes of this Act [see Short Title of 1990 Amendment note above], the term 'Secretary' means the Secretary of the Army."

Pub. L. 100–676, §2, Nov. 17, 1988, 102 Stat. 4013, provided that: "For purposes of this Act [see Short Title of 1988 Amendment note above], the term 'Secretary' means the Secretary of the Army."

Memorandum of President of the United States, Oct. 19, 2018, 83 F.R. 53961, provided:

Memorandum for the Secretary of the Interior[,] the Secretary of Commerce[,] the Secretary of Energy[,] the Secretary of the Army[, and] the Chair of the Council on Environmental Quality

By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Policy. During the 20th Century, the Federal Government invested enormous resources in water infrastructure throughout the western United States to reduce flood risks to communities; to provide reliable water supplies for farms, families, businesses, and fish and wildlife; and to generate dependable hydropower. Decades of uncoordinated, piecemeal regulatory actions have diminished the ability of our Federal infrastructure, however, to deliver water and power in an efficient, cost-effective way.

Unless addressed, fragmented regulation of water infrastructure will continue to produce inefficiencies, unnecessary burdens, and conflict among the Federal Government, States, tribes, and local public agencies that deliver water to their citizenry. To meet these challenges, the Secretary of the Interior and the Secretary of Commerce should, to the extent permitted by law, work together to minimize unnecessary regulatory burdens and foster more efficient decision-making so that water projects are better able to meet the demands of their authorized purposes.

Sec. 2. Streamlining Western Water Infrastructure Regulatory Processes and Removing Unnecessary Burdens. To address water infrastructure challenges in the western United States, the Secretary of the Interior and the Secretary of Commerce shall undertake the following actions:

(a) Within 30 days of the date of this memorandum [Oct. 19, 2018], the Secretary of the Interior and the Secretary of Commerce shall:

(i) identify major water infrastructure projects in California for which the Department of the Interior and the Department of Commerce have joint responsibility under the Endangered Species Act of 1973 (ESA) (Public Law 93–205) [16 U.S.C. 1531 et seq.] or individual responsibilities under the National Environmental Policy Act of 1969 (NEPA) (Public Law 91–190) [42 U.S.C. 4321 et seq.]; and

(ii) for each such project, work together to facilitate the designation of one official to coordinate the agencies' ESA and NEPA compliance responsibilities. Within the 30-day time period provided by this subsection, the designated official shall also identify regulations and procedures that potentially burden the project and develop a proposed plan, for consideration by the Secretaries, to appropriately suspend, revise, or rescind any regulations or procedures that unduly burden the project beyond the degree necessary to protect the public interest or otherwise comply with the law. For purposes of this memorandum, "burden" means to unnecessarily obstruct, delay, curtail, impede, or otherwise impose significant costs on the permitting, utilization, transmission, delivery, or supply of water resources and infrastructure.

(b) Within 40 days of the date of this memorandum, the Secretary of the Interior and the Secretary of Commerce shall develop a timeline for completing applicable environmental compliance requirements for projects identified under section 2(a)(i) of this memorandum. Environmental compliance requirements shall be completed as expeditiously as possible, and in accordance with applicable law.

(c) To the maximum extent practicable and consistent with applicable law, including the authorities granted to the Secretary of the Interior and the Secretary of Commerce under the Water Infrastructure Improvements for the Nation Act (Public Law 114–322):

(i) The Secretary of the Interior and the Secretary of Commerce shall ensure that the ongoing review of the long-term coordinated operations of the Central Valley Project and the California State Water Project is completed and an updated Plan of Operations and Record of Decision is issued.

(ii) The Secretary of the Interior shall issue final biological assessments for the long-term coordinated operations of the Central Valley Project and the California State Water Project not later than January 31, 2019.

(iii) The Secretary of the Interior and the Secretary of Commerce shall ensure the issuance of their respective final biological opinions for the long-term coordinated operations of the Central Valley Project and the California State Water Project within 135 days of the deadline provided in section 2(c)(ii) of this memorandum. To the extent practicable and consistent with law, these shall be joint opinions.

(iv) The Secretary of the Interior and the Secretary of Commerce shall complete the joint consultation presently underway for the Klamath Irrigation Project by August 2019.

(d) The Secretary of the Interior and the Secretary of Commerce shall provide monthly updates to the Chair of the Council on Environmental Quality and other components of the Executive Office of the President, as appropriate, regarding progress in meeting the established timelines.

Sec. 3. Improve Forecasts of Water Availability. To facilitate greater use of forecast-based management and use of authorities and capabilities provided by the Weather Research and Forecasting Innovation Act of 2017 (Public Law 115–25) [15 U.S.C. 8501 et seq.] and other applicable laws, the Secretary of the Interior and the Secretary of Commerce shall convene water experts and resource managers to develop an action plan to improve the information and modeling capabilities related to water availability and water infrastructure projects. The action plan shall be completed by January 2019 and submitted to the Chair of the Council on Environmental Quality.

Sec. 4. Improving Use of Technology to Increase Water Reliability. To the maximum extent practicable, and pursuant to the Reclamation Wastewater and Groundwater Study and Facilities Act (Public Law 102–575, title XVI) [43 U.S.C. 390h et seq.], the Water Desalination Act of 1996 (Public Law 104–298) [42 U.S.C. 10301 note], and other applicable laws, the Secretary of the Interior shall direct appropriate bureaus to promote the expanded use of technology for improving the accuracy and reliability of water and power deliveries. This promotion of expanded use should include:

(a) investment in technology and reduction of regulatory burdens to enable broader scale deployment of desalination technology;

(b) investment in technology and reduction of regulatory burdens to enable broader scale use of recycled water; and

(c) investment in programs that promote and encourage innovation, research, and development of technology that improve water management, using best available science through real-time monitoring of wildlife and water deliveries.

Sec. 5. Consideration of Locally Developed Plans in Hydroelectric Projects Licensing. To the extent the Secretary of the Interior and the Secretary of Commerce participate in Federal Energy Regulatory Commission licensing activities for hydroelectric projects, and to the extent permitted by law, the Secretaries shall give appropriate consideration to any relevant information available to them in locally developed plans, where consistent with the best available information.

Sec. 6. Streamlining Regulatory Processes and Removing Unnecessary Burdens on the Columbia River Basin Water Infrastructure. In order to address water and hydropower operations challenges in the Columbia River Basin, the Secretary of the Interior, the Secretary of Commerce, the Secretary of Energy, and the Assistant Secretary of the Army for Civil Works under the direction of the Secretary of the Army, shall develop a schedule to complete the Columbia River System Operations Environmental Impact Statement and the associated Biological Opinion due by 2020. The schedule shall be submitted to the Chair of the Council on Environmental Quality within 60 days of the date of this memorandum.

Sec. 7. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP.